CONFLICT OF INTEREST; EMPLOYEES HOLDING OFFICE; VOTING CONFLICT;
POST-PUBLIC-OFFICEHOLDING RESTRICTIONS

SCHOOL BOARD MEMBER APPLYING DURING BOARD TERM
FOR PUBLIC EDUCATION FOUNDATION POSITION
TO COMMENCE AFTER LEAVING SCHOOL BOARD

To:        Beverly Morris, Esquire, Ocala

SUMMARY:

Neither Section 112.313(7)(a), nor Section 112.313(10), nor Section 112.313(14), Florida Statutes, would prohibit a District School Board member from applying for employment with a foundation directly supporting the District; from assuming the position after she leaves the School Board; or from "representing" the foundation before the Board/District within two years of leaving the Board. However, the member must comply with Section 112.3143(3)(a), Florida Statutes, regarding Board votes/measures concerning her applying for the position. CEOs 11-23, 08-14, and 88-11 are referenced.¹

QUESTION 1:

Would a prohibited conflict of interest be created were a School Board member to apply for employment with the School Board to serve a School Board foundation, with the employment to begin after the member's School Board term expires, and were the member to represent the foundation before the School Board/District within two years of leaving the Board?

Under the circumstances presented, Question 1 is answered in the negative.

In your letter of inquiry and additional information provided to our staff, you ask whether the Code of Ethics (Part III, Chapter 112, Florida Statutes) would prohibit Judi Zanetti, a member of the District School Board of Marion County, from applying for a compensated position as foundation officer of a public education foundation (a nonprofit direct support organization for the District); from beginning the position, if hired, after leaving the School Board; or from "representing" the foundation before the School Board/District within two years of vacating her Board seat. Further, you emphasize that if the Board member is selected for the position, her employment would begin after the end of her current (and final) term as a School Board member.

Additionally, you state that the foundation is authorized to operate as a direct support organization for the benefit of the District; that the opening for the position the member would seek is posted and available to all School Board employees and the public; and that the position is compensated directly by the School Board. Further, according to the posted job description you have provided, the work of the position is to supervise the foundation in organizing and developing a volunteer network to raise funds and enhance education, and the position is under the supervision of the elected Superintendent of Schools. Also, among the duties of the position are: coordinating foundation planning, development and policy with the foundation's board of directors; soliciting private support; interfacing with the foundation board of directors and School Board personnel; managing fiscal responsibilities of private grants awarded to the District; reporting to the Internal Revenue Service on behalf of the foundation; working with the business community to increase student and teacher quality; and writing news releases for the foundation.

You state that the selection process for the position would begin with interviews by a committee consisting of foundation volunteers, followed by the committee's recommending a candidate for the position, with the committee's recommendation then subject to approval of the Superintendent. Further, you relate that the School Board would vote to approve or disapprove the Superintendent's recommendation. And, you state that the member would abstain from the relevant School Board discussions; abstain from the Board's approval vote; and complete the appropriate voting conflict memorandum (CE Form 8B).

The Code of Ethics for Public Officers and Employees provides, in relevant part:

EMPLOYEES HOLDING OFFICE.-No employee of a state agency or of a county, municipality, special taxing district, or other political subdivision of the state shall hold office as a member of the governing board, council, commission, or authority, by whatever name known, which is his or her employer while, at the same time, continuing as an employee of such employer. [Section 112.313(10)(a), Florida Statutes.]

CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP.—No public officer . . . shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or is doing business with, an agency of which he or she is an officer or employee . . . ; nor shall any officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his or her private interests and the performance of his or her public duties or that would impede the full and faithful discharge of his or her public duties. [Section 112.313(7)(a), Florida Statutes.]

LOBBYING BY FORMER LOCAL OFFICERS; PROHIBITION -- A person who has been elected to any county, municipal, special district, or school district office may not personally represent another person or entity for compensation before the government body or agency of which the person was an officer for a period of 2 years after vacating that office. . . . [Section 112.313(14), Florida Statutes.]

For purposes of this subsection: . . .

(e) The "government body or agency" of an elected school district officer is the school district. [Section 112.313(14)(e), Florida Statutes.]

Section 112.313(10)(a) prohibits a public employee from holding office on a board that is, at the same time, his or her employer. However, because the member's holding of the foundation position, if she achieves it, would not overlap in time with her service on the School Board, we find that her application for and placement in the position would not be prohibited by Section 112.313(10).²

Similarly, in order for Section 112.313(7)(a) to potentially prohibit the member's holding employment in the position, her employment would have to overlap in time with her School Board service. See CEO 08-14 and CEO 88-11. However, under the facts presented, the member, if selected for the position, would no longer be a member of the School Board at the time she begins employment as foundation officer. Thus, we find that the employment would present no prohibited conflict of interest for the member under Section 112.313(7)(a).

Section 112.313(14) is implicated to the extent that the foundation officer would represent the foundation before the Board or District. However, Section 112.316, Florida Statutes, provides:

CONSTRUCTION.--- It is not the intent of this part, nor shall it be construed, to prevent any officer . . . of a state agency . . . or other political subdivision of this state . . .from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer . . . of his or her duties to the state . . . or other political subdivision of the state involved.

Because the foundation exists solely to support the District, any request the foundation officer would make to the Board/District on behalf of the foundation would serve a unified goal of supporting the local public schools. Thus, we find that a unity of interest under Section 112.316, Florida Statutes, would negate a harsh, mechanical application of Section 112.313(14). See CEO 11-23.

Question 1 is answered accordingly.

QUESTION 2:

Would the member be prohibited by Section 112.3143(3)(a), Florida Statutes, from voting on the School Superintendent's recommendation for the foundation officer position?

Question 2 is answered in the affirmative.

Section 112.3143(3)(a) provides in relevant part:

VOTING CONFLICTS.--No county, municipal, or other local public officer shall vote in an official capacity upon any measure which inures to his or her special private gain or loss . . . . Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of the officer's interest in the matter from which he or she is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his or her interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes.

As the School Board's vote on the Superintendent's recommendation for the foundation officer position could have the effect of selecting the member for the position or eliminating her from consideration, we find that she would be required to abstain from the vote. We note that the member has already advised that she does not intend to vote on, or participate in discussion of, the measure. Further, the member will be required to publicly state to the Board the nature of her interest in any measure(s) concerning the position, and, within 15 days after the relevant vote(s), to file a memorandum (CE Form 8B) disclosing the nature of her interest in the relevant vote(s)/measure(s).

Question 2 is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on February 3, 2012 and RENDERED this 8th day of February, 2012.

____________________________________

Robert J. Sniffen, Chairman

^[1]Prior opinions of the Commission on Ethics may be obtained from its website (www.ethics.state.fl.us).